Mahabir Prasad vs Sital Singh and Others

Banerji, J.—This appeal arises out of proceedings relating to the execution; of a decree. The appellant, decree-holder, obtained on the 17th of December 1886, from the Court of First Instance a decree for sale on a mortgage which was affirmed in appeal on the 10th of August 1882. The decree was one u/s 88 of Act No. IV of 1882. On the 15th of July 1890, the decree-holder applied for an order absolute for sale u/s 89 of that Act, and on the 20th September 1890, the order asked for was made. He then applied for sale in execution of his decree on the 12th September 1893. The Lower Appellate Court has held that this application was beyond time, having been made after the expiry of three years from the date of the application for an order u/s 89 and that execution is therefore barred. In my opinion the court below was wrong. A decree-bolder who obtains a decree u/s 88 of the Transfer of Property-Act is not entitled to apply for the sale of the mortgaged property upon the passing of that decree. His right to obtain execution by sale of the mortgaged property only accrues to him, and the decree made u/s 88 becomes capable of execution, on his obtaining an order absolute for sale u/s 89. Until that order has been passed, the mortgagor''s right to redeem does not become extinct, and it is only when the right of redemption of the mortgagor is gone that the mortgagee can cause the mortgaged property to be sold by applying for execution of the decree passed u/s 88. His right to execute that decree thus depends upon the passing of the order absolute for sale u/s 89, and, as I have said, since he could not apply for sale until that order was made, his application for execution would be within time if presented within three years of the date of the order u/s 89. In this case the application for execution was made before the expiry of three years from the date of the order u/s 89. It may be that the application was an application to execute, not the order, but the decree itself; but the right to execute the decree did not accrue to the decree-holder, and the decree did not become capable of execution, until the order was obtained. In this view the application was not time-barred, and the Court below has erred in holding it to be so. It is true that in Oudh Behari Lal v. Nageshar Lal ILR 13 All. 278, it was held that an application for an order absolute for sale u/s 89 of the Transfer of Property Act is a proceeding in execution and may be made to the Court executing the decree, but that is not the question before us. The question which arises in this appeal is whether a decree-holder could apply for the execution of a decree obtained by him u/s 88 until he had obtained an order u/s 89. As, in my opinion, he could not do so, his application, if made within three years from the date of the order u/s 89, would be an application within time. I do not mean to imply that it is necessary for the decree-holder to make a separate application for an order u/s 89, though that would be a preferable course to pursue. The prayer for an order under that section and for the sale of the property may be contained in the same application, as held in the case referred to above. I would allow the appeal and setting aside the decree of the Lower Appellate Court, restore that of the Court of First Instance with costs here and in the Lower Appellate Court.

Aikman, J.

The question raised by this appeal was considered by me in Mulchand v. Mukta Pal Singh 1896 WN 100. For the reasons given in my judgment in that case I concur with my brother BANBBJI in thinking that this appeal should be allowed and in the order proposed by him.